Articles Posted inBoard Certified In Criminal Law

Recently the United States Supreme Court decided, in the case of Sessions v. Dimaya, that that the federal definition of the term “crime of violence” is unconstitutionally vague. That phrase is defined in 18 U.S.C. Section 16 (b) and may be found here. Readers may note that the definition struck down as unconstitutionally vague is identical to the definition of “crime of violence” found in 18 U.S.C. section 924, which criminalizes the act of possessing a firearm in furtherance of “drug trafficking crime” or a “crime of violence.”

The Court in Dimaya was following up on their 2015 opinion in Johnson v. United States, which struck down so called “residual clause” of the Armed Career Criminal Act on the grounds of vagueness. The Armed Career Criminal Act’s residual clause defined the term “violent felony” in such a way so as to render it void for vagueness. The Dimaya court extended that rationale to the “crime of violence” definition embedded in federal law at 18 U.S.C. Section 16(b).

Though the U.S. Supreme Court in Dimaya did not expressly rule or consider a constitutional challenge to the 924(c) provision criminalizing the possession of a firearm in furtherance of a crime of violence, the reasoning employed clearly raises significant questions as to the continued vitality of that section of 924(c). It would appear it may offer relief to people indicted in Federal Court or those convicted but whose have not become final. The question as to whether it will be the basis on which to file a post conviction habeas writ for those whose convictions have become final will be the topic of a future post

This week the United States Supreme Court delivered a significant ruling on free speech and the First Amendment. In an 8-0 ruling ,the Court held that a North Carolina law preventing registered sex offenders from accessing the internet, for the purpose of engaging with social media platforms such as Facebook and Twitter impermissibly restricted free speech in violation of the first amendment. The case, known as Packingham v. North Carolina came about when Mr. Packingham, a registered sex offender, logged on to Facebook and wrote a post expressing gratitude for the dismissal of a traffic citation.

For this he was indicted under the North Carolina law which makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” Justice Kennedy wrote the opinion for the Court and he stressed the importance of social media in present day society as the place where we now discuss religion and politics, search for employment, chat with friends and even scheduled events. Referring to social media as the “modern public square” the Court held that the North Carolina law was not consistent with the Constitutional guarantee of free speech.

How might this impact Texas? While Texas criminal statutes do not prohibit a registered sex offender from accessing the internet, state parole laws most certainly do and the prohibitions are fairly stringent. In addition, a no internet access condition is sometimes imposed by agreement or by the Court in situations where a registered sex offender is being placed on community supervision. Though the Texas laws were not directly at issue in Packingham, the Court’s robust interpretation of free speech in this context does call into question the continuing validity of broad laws that prohibit registered sex offenders from generally accessing social media.

When someone has been charged with a criminal offense, at some point the decision must be made to plead guilty or exercise one’s right to a jury trial. This statement is true in most criminal cases. I say most, because some criminal cases are dismissed by the prosecutor before trial or plea.

The decision to enter a guilty plea or insist on one’s right to a trial is a very important one for one’s future. There are a number of factors that go into the decision to accept a plea bargain offer or . The decision is very case specific and can’t be made until a lawyer thoroughly investigates the facts of the case, including speaking to the witnesses where possible, and fully understands the law applicable to the case. Other important but somewhat intangible considerations involve the defense lawyer. Does he or she practice in the county in which the charge is pending? Does the lawyer know the practices of the particular court in which the case is pending? Has the lawyer tried this type of case before and is he or she familiar with the sorts of punishments are common for thus type of offense.

It is not possible for your lawyer to advise you as to whether you should try the case or accept a plea bargain offer unless the attorney has the information I discussed above, as well as a realistic grasp of what sorts of outcomes are reasonably likely in the case pending against the client. An inexperienced attorney is not going to know whether a particular plea bargain offer is “good” or “bad.”